Date: Tue, 10 Dec 1996 23:20:16 GMT
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<head>
	<title>The Leading Supreme Court Case</title>
</head>

<H2>
Update for <em>ACLU v Reno</em> and other recent events
</h2>

In the rather long discussion that follows, I argue that the
<em>Pacifica</em> case is the most closely applicable precedent on the
issue of the constitutionality of the Decency Act.  A panel of three
District Court judges basically disagreed with this view and
distinguished <em>Pacifica</em>, in <!WA0><a
href=http://www.eff.org/Alerts/HTML/960612_aclu_v_reno_decision.html><em>ACLU
v Reno</em></a>.  The primary ground for holding the Act
unconstitutional derived from the nature of the Internet as a
widespread, distributed medium for communication.  The panel did not
believe the "indecency" term was necessarily unconstitutionally vague or
overbroad.  I've written a perhaps rather slanted <!WA1><a
href=http://www.cs.washington.edu/homes/eric/Update.html>summary</a> of the decision.

<H2>
Indecent Speech is Any Nonconforming Speech
</h2>

The <!WA2><a href=http://www.cs.washington.edu/homes/eric/CDA96_act.html> Communications Decency Act of 1996</a>
(the "Decency Act") forbids not merely on-line obscenity but any speech that is
<em>"indecent"</em>.  The Supreme Court has held that the standard for
"indecent" speech -- defined using the same language as in the 1996
Act -- is any "nonconformance with accepted standards of morality."
<cite>FCC v. Pacifica Foundation</cite>, 438 US 726, 740(1978).
Merely by making any such nonconforming speech available on-line, on a
Web page that might be read by a person under eighteen, you would now
be committing a <!WA3><a href=http://www.cs.washington.edu/homes/eric/18USC3559.html>
felony </a> under Federal law.  

<p> 

People I have spoken to generally expect that the strict legal effect
of the Decency Act is basically benign.  They base that belief (or
hope) on two premises:  either that the Decency Act is aimed at 
hard-core obscenity, or that the First Amendment will protect them.

<p>
<strong>Both of these hopes are simply wrong on the law.  The
Supreme Court has already decided against you.</strong>
<p>

The landmark case is <cite>FCC v. Pacifica Foundation</cite>, 438 U.S.
726 (1978).  In that case, the Court upheld the FCC's finding that a
radio station was subject to sanctions for broadcasting the famous
George Carlin monologue (see below).  The FCC characterized the
monologue in its findings:

<pre>
    [T]he Commission concluded that certain words depicted sexual and
excretory activities in a patently offensive manner..."  438 U.S. at 732.
</pre>

Guess what?  The Decency Act forbids any
<pre>
"comment ... or other communication that, in context, ...
describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs..."  47
U.S.C. section 223(d)(1)(B).
</pre>

In <cite>Pacifica</cite>, the Court specifically ruled that the First Amendment
did not prevent government regulation of that broadcast based on its
content, even though --
<ul>
<li> the monologue constituted "speech" within the meaning of the
First Amendment, 438 U.S. at 744;
<li> the radio station had warned listeners immediately before the
broadcast, 438 U.S. at 730;
<li> the material did not have "prurient appeal", and 
was not "obscene, ..., indecent, filthy or vile" within the meaning of
the federal statutes pertaining to obscene mail, 438 U.S. at 740;
<li> the monologue was not "obscene in the constitutional sense",
438 U.S. at 756 (Powell, J., concurring);
<li> the Commission's objections were based in part on the content of
the broadcast, 438 U.S. at 744;
<li> a radio broadcast, "unlike other intrusive methods of
communication, '... can be turned off,' 438 U.S. at 765 (Brennan, J.,
dissenting) (citing Lehman v. Shaker Heights, 418 U.S. 298, 302
(1974));
<li> the decision "has the ... effect of making completely unavailable
to adults material which may not constitutionally be kept even from
children," 438 U.S. at 769 (Brennan, J., dissenting);
<li> the Court's "rationales could justify the banning from radio of a
myriad of literary works, novels, poems, and plays by the likes of
Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert
Burns, and Chaucer;", 438 U.S. at 771 (Brennan, J., dissenting)
</ul>

<hr> The remainder of this page excerpts (in direct quote) from this
landmark opinion.  As you read these opinions (majority, concurring,
and dissenting), remember that although you may or may not agree with
the reasoning, <strong>the Court squarely held that the monologue in
question was not "speech" protected by the First Amendment</strong>.
That is, the radio station <em>lost the case</em>.  (If you like, you
can skip straight to the <!WA4><a href=#ending>ending.</a>) <hr>

<h4> Majority opinion</h4>
<hr>
Mr. Justice <strong>Stevens </strong> delivered the opinion of the
Court (Parts I, II, III, and IV-C) and an opinion in which the
<strong>Chief Justice</strong>[Mr. Justice Burger] and Mr. Justice
<strong>Rehnquist</strong> joined (Parts IV-A and IV-B).
<p>
This case requires that we decide whether the Federal Communications
Commission has any power to regulate a radio broadcast that is
indecent but not obscene.
<p>
A satiric humorist named George Carlin recorded a 12-minute monologue
entitled "Filthy Words" before a live audience in a California
theater.  He began by referring to his thoughts about "the words you
couldn't say on the public, ah, airwaves, um, the ones you definitely
wouldn't say, ever."  He proceeded to list those words and repeat them
over and over again in a variety of colloquialisms.  The transcript of
this recording, which is appended to this opinion, indicates frequent
laughter from the audience.
<p>
At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a
New York radio station, owned by respondent Pacifica Foundation,
broadcast the "Filthy Words" monologue.  A few weeks later a man, who
stated that he had heard the broadcast while driving with his young
son, wrote a letter complaining to the Commission.  He stated that,
although he could perhaps understand the "record's being sold for
private use, I certainly cannot understand the broadcast of same over
the air that, supposedly, you control."
<p>
The complaint was forwarded to the station for comment.  In its
response, Pacifica explained that the monologue had been played during
a program about contemporary society's attitude toward language and
that, immeidately before its broadcast, listeners had been advised
that it included "sensitive language which might be regarded as
offensive to some."... Pacifica stated that it was not aware of any
other complaints about the broadcast.
<p>
...The Commission ... expressed the opinion that it should be
regulated...  "[T]he concept of 'indecent' is intimately connected
with he exposure of children to language that describes, in terms
patently offensive as measured by contemporary standards for the
broadcast medium, sexual or excretory activities and organs, at times
of the day when there is a reasonable risk that children may be in the
audience."  
...
<p>
The Commission identified several words that referred to excretory or
sexual activities or organs, stated that the repetitive, deliberate
use of those words in an afternoon broadcast when children are in the
audience was patently offensive, and held that the broadcast was
indecent.  Pacifica takes issue with the Commission's definition of
indecency, but does not dispute the Commission's preliminary
determination that each of the components of its definition was
present.  Specifically, Pacifica does not quarrel with the conclusion
that this afternoon broadcast was patently offensive.  Pacifica's
claim that the broadcast was not indecent within the meaning of the
statute rests entirely on the absence of prurient appeal.  
<p>
...Prurient appeal is an element of the obscene, but the normal
definition of "indecent" merely refers to nonconformance with accepted
standards of morality.  
<p>
Pacifica argues, however, that this Court has construed the term
"indecent" in related statutes to mean "obscene", as that term was
defined in Miller v. California, 413 U.S. 15.... [I]n Hamling
v. United States, 418 U.S 87,... [i]n holding that the statute's
coverage is limited to obscenity, the Court followed the lead of
Mr. Justice Harlan in Manual Enterprises, Inc., v. Day, 370
U.S. 478... [H]e thought that the phrase "obscene, lewd, lascivious,
indecent, filthy or vile," taken as a whole, was clearly limited to
the obscene, a reading well grounded in prior judicial constructions:
"[T]he statute since its inception has always been taken as aimed at
obnoxiously debasing portrayals of sex."  Id., at 483.  In Hamling
the Court agreed with Mr. Justice Harlan that section 1461 was meant
only to regulate obscenity in the mails;  by reading into it the
limits set by Miller v. California, supra, the Court adopted a
construction which assured the statute's constitutionality.  
<p>
The reasons supporting Hamling's construction of section 1461 do not
apply to section 1464.... 
<p>
...Pacifica argues that inasmuch as the recording is not obscene, the
Constitution forbids any abridgment of the right to broadcast it on
the radio.  
<p>
When the issue is narrowed to the facts of this case, the question is
whether the First Amendment denies government any power to restrict
the public broadcast of indecent language in any circumstances.  For
if the government has any such power, this was an appropriate occasion
for its exercise.  
<p>
The words of the Carlin monologue are unquestionably "speech" within
the meaning of the First Amendment.  It is equally clear that the
Commission's objections to the broadcast were based in part on its
content.  The order must therefore fall if, as Pacifica argues, the
First Amendment prohibits all governmental regulation that depends on
the content of speech.  Our past cases demonstrate, however, that no
such absolute rule is mandated by the Constitution.  
<p>
...
The question in this case is whether a broadcast of patently offensive
words dealing wtih sex and excretion may be regulated because of its
content.  Obscene materials have been denied the protection of the
First Amendment because their content is so offensive to contemporary
moral standards.  Roth v. United States, 354 U.S. 476.  But the fact
that society may find speech offensive is not a sufficient reason for
suppressing it.  Indeed, if it is the speaker's opinion that gives
offense, that consequence is a reason for according it constitutional
protection.  For it is a central tenet of the First Amendment that the
government must remain neutral in the marketplace of ideas.  If there
were any reason to believe that the Commission's characterization of
the Carlin monologue as offensive could be traced to its political
content -- or even to the fact that it satirized contemporary
attitudes about four-letter words -- First Amendment protection might
be required.  But that is simply not the case.  These words offend for
the same reasons that obscenity offends....
<p>
We have long recognized that each medium of expression presents
special First Amendment problems.... The reasons for these
distinctions are complex, but two have relevance to the present case.
First, the broadcast media have established a uniquely pervasive
presence in the lives of all Americans.  Patently offensive, indecent
material presented over the airwaves confronts the citizen, not only
in public, but also in the privacy of the home, where the individual's
right to be left alone plainly outweighs the First Amendment rights of
an intruder.  Rowan v. Post Office Dept., 397 U.S. 728.  Because the
broadcast audience is constantly tuning in and out, prior warnings
cannot completely protect the listener or viewer from unexpected
program content.  To say that one may avoid further offense by turning
off the radio when he hears indecent language is like saying that the
remedy for an assault is to run away after the first blow.  One may
hang up on an indecent phone call, but that option does not give the
caller a constitutional immunity or avoid a harm that has already
taken place.
<p>
Second, broadcasting is uniquely accessible to children, even those
too young to read.  Although Cohen's written message ["Fuck the Draft"
across the back of his jacket;  his conviction was overturned on First
Amendment grounds.  See discussion, 438 U.S. 747 at n.25. -- E.A.]  
might have been incomprehensible to a first grader, Pacifica's
broadcast could have enlarged a child's vocabulary in an instant.
Other forms of offensive expression may be withheld from the young
without restricting the expression at its source.  Bookstores and
motion picture theaters, for example, may be prohibited from making
indecent material available to children.  We held in Ginsberg v. New
York, 390 U.S. 629, that the government's interest in the "well-being
of its youth" and in supporting "parents' claim to authority in their
own household" justified the regulation of otherwise protected
expression.  Id., at 640 and 639.  The ease with which children may
obtain access to broadcast material, coupled with the concerns
recognized in Ginsberg, amply justify special treatment of indecent
broadcasting.  

<p>
...The judgment of the Court of Appeals is reversed.

<hr>
<h4>Appendix </h4>
<hr>
The following is a verbatim transcript of "Filthy Words" prepared by
the Federal Communications Commission.  
<p>
Aruba-du, ruba-tu, ruba-tu.  I was thinking about the curse words and
the swear words, the cuss words and the words that you can't say, that
you're not supposed to say all the time, [`]cause words or people into
words want to hear your words.  Some guys like to record your words
and sell them back to you if they can, (laughter) listen in on the
telephone, write down what words you say.  A guy who used to be in
Washington knew that his phone was tapped, used to answer, Fuck
Hoover, yes, go ahead.  (Laughter)  Okay, I was thinking one night
about the words you couldn't say on the public, ah, airwaves, um, the
ones you definitely wouldn't say, ever, [`]cause I heard a lady say
bitch one night on television, and it was cool like she was talking
about, you know, ah, well, the bitch is the first one to notice that
in the litter Johnie right (murmur) Right.  And, uh, bastard you can
say, and hell and damn so I have to figure out which ones you couldn't
and it came down to seven but the list is open to amendment, and in
fact, has been changed, uh, by now, ha, a lot of people pointed things
out to me, and I noticed some myself.  The original seven words were,
shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.  Those are
the ones that will curve your spine, grow hair on your hand and
(laughter) maybe, even bring us, God help us, peace without honor
(laughter) um, and a bourbon.  (laughter) And now the first thing that
we noticed was that the word fuck was really repeated in there because
the word motherfucker is a compound word and it's another form of the
word fuck. (laughter) You want to be a purist it doesn't really -- it
can't be on the list of basic words.  Also cocksucker is a compound
word and neither half of that is really dirty.  The word -- the half
sucker that's merely suggestive (laughter) and the word cock is a
half-way dirty word, 50% dirty -- dirty half the time, depending on
what you mean by it. (laughter) Uh, remember when you first heard it,
like in 6th grade, you used to giggle.  And the cock crowed three
times, heh (laughter) the cock -- three times.  It's in the Bible,
cock in the Bible.  (laughter)  And the first time you heard about a
cock-fight, remember -- What?  Huh?  naw.  It ain't that, are you
stupid?  man.  (laughter, clapping)  It's chickens, you know,
(laughter) Then you have the four letter words from the old
Anglo-Saxon fame.  Uh, shit and fuck.  The word shit, uh, is an
interesting kind of word in that the middle class has never really
accepted it and approved it.  They use it like, crazy but it's not
really okay.  It's still a rude, dirty, old kind of gushy word.
(laughter) They don't like that, but they say it, like, they say it
like a lady now in a middle-class home, you'll hear most of the time
she says it as an expletive, you know, it's out of her mouth before
she knows.  She says, Oh shit oh shit, (laughter) oh shit.  If she
drops something, Oh, the shit hurt the broccoli.  Shit.  Thank you.
(footsteps fading away) (papers ruffling)
<p>
Read it! (from audience)
<p>
Shit! (laughter) I won the Grammy, man, for the comedy album.  Isn't
that groovy?  (clapping, whistling) (murmur) That's true.  Thank you.
Thank you man.  Yeah.  (murmur)(continuous clapping) Thank you man.
Thank you.  Thank you very much, man.  Thank, no, (end of continuous
clapping) for that and for the Grammy, man, [`]cause (laughter) that's
based on people liking it man, yeh, that's ah, that's okay man.
(Laughter) Let's let that go, man.  I got my Grammy.  I can let my
hair hang down now, shit.  (laughter) Ha!  So!  Now the word shit is
okay for the man.  At work you can say it like crazy.  Mostly
figuratively.  Get that shit out of here, will ya?  I don't want to
see that shit anymore.  I can't <em> cut</em> that shit, buddy.  I've
had that shit up to here.  I think you're full of shit myself.
(laughter)  He don't know shit from Sinola.  (laughter) you know that?
(laughter) Always wondered how the Shinola people felt about that
(laughter) Hi, I'm the new man from Shinola. (laughter) Hi, how are
ya? Nice to see ya.  (laughter)  How are ya? (laughter) Boy, I don't
know whether to shit or wind my watch.  (laughter)  Guess, I'll shit
on my watch. (laughter) Oh, <em>the </em> shit is going to hit
<em>de</em> fan. (laughter) Built like a brick shit-house. (laughter)
Up, he's up shit's creek. (laughter) He's had it. (laughter) He hit
me, I'm sorry.  (laughter) Hot shit, holy shit, tough shit, eat shit,
(laughter) shit-eating grin.  Uh, whoever thought of that was ill.
(murmur laughter) He had a shit-eating grin!  He had a what?
(laughter) Shit on a stick. (laughter) Shit in a handbag.  I always
like that.  He ain't worth shit in a handbag. (laughter) Shitty.  He
acted real shitty. (laughter) You know what I mean?  (laughter) I got
the money back, but a real shitty attitude.  Heh, he had a shit-fit.
(laughter) Wow!  Shit-fit.  Whew!  Glad I wasn't there.  (murmur,
laughter) All the animals -- Bull shit, horse shit, cow shit, rat
shit, bat shit.  (laughter) First time I heard bat shit, I really came
apart.  A guy in Oklahoma, Boggs, said it, man.  AW!  Bat
shit. (laughter) Vera reminded me of that last night, ah (murmur).
Snake shit, slicker than owl shit. (laughter) Get your shit together.
Shit or get off the pot. (laughter) I got a shit-load full of
them. (laughter) I got a shit-pot full, all right.  Shit-head,
shit-heel, shit in your heart, shit for brains, (laughter) shit-face,
heh (laughter) I always try to think how that could have originated;
the first guy that said that.  Somebody got drunk and fell in some
shit, you know.  (laughter)  Hey, I'm shit-fadce.  (laughter)
Shit-face, <em>today.</em> (laughter) Anyway, enough of that
shit. (laughter) The big one, the word fuck that's the one that hangs
them up the most.  [`]Cause in a lot of cases that's the very act that
hangs them up the most.  So, it's natural that the word would, uh,
have the same effect.  It's a great word, fuck, nice word, easy word,
cute word, kind of.  Easy word to say.  One syllable, short u.
(laughter) Fuck.  (Murmur) You know, it's easy.  Starts with a nice
soft sound fuh ends with a <em>kuh</em>.  Right? (laughter) A little
something for everyone. Fuck (laughter) Good word.  Kind of a proud
word, too.  Who are you?  I am <em>FUCK</em>. (laughter)  <em>FUCK OF
THE MOUNTAIN.</em> (laughter) Tune in again next week to FUCK OF THE
MOUNTAIN. (laughter)  It's an interesting word too, [`]cause it's got
a double kind of a life-- personality--dual, you know, whatever the
right phrase is.  It leads a double life, the word fuck.  First of
all, it means, sometimes, most of the time, fuck.  What does it mean?
It means to make love.  Right?  We're going to make love, yeh, we're
going to fuck, yeh, we're going to fuck, yeh, we're going to make
love. (laughter) we're really going to fuck, yeh, we're going to make
love.  Right?  And it also means the beginning of life, it's the act
that begins life, so there's the word hanging around with words like
love, and life, and yet on the other hand, it's also a word that we
really use to hurt each other with, man.  It's a heavy.  It's one that
you have toward the end of the argument. (laughter) Right? (laughter)
You finally can't make out.  Oh, fuck you man.  I said, fuck you.
(laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that
looks like you. (laughter) man.  It would be nice to change the movies
that we already have and substitute the word fuck for the word kill,
wherever we could, and some of those movie cliches would change a
little bit. Madfuckers still on the loose.  Stop me before I fuck
again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck
the ump.  Easy on the clutch, Bill, you'll fuck that engine
again. (laughter) The other shit one was, I don't give a shit.  Like
it's worth something, you know? (laughter) I don't give a shit.  Hey,
well, I don't take no shit, (laughter) you know what I mean?  You know
why I don't take no shit? (laughter) [`]Cause I don't give a
shit. (laughter) If I give a shit, I would have to pack
shit. (laughter) But I don't pack no shit cause I don't give a
shit. (laughter) You wouldn't shit me, would you? (laughter) That's a
joke when you're a kid wiht a worm looking out the bird's ass.  You
wouldn't shit me, would you? (laughter) It's an eight-year-old joke
but a good one. (laughter) The additions to the list.  I found three
more words that had to be put on the list of words you could never say
on television, and they were fart, turd, and twat, those three.
(laughter) Fart, we talked about, it's harmless It's like tits, it's a
cutie word, no problem.  Turd, you can't say but who wants to, you
know? (laughter) The subject never comes up on the panel so I'm not
worried about that one.  Now the word twat is an interesting word.
Twat!  Yeh, right in the twat. (laughter) Twat is an interesting word
because it's the only one IO know of, the only slang word applying to
the, a part of the sexual anatomy that doesn't have another meaning to
it.  Like, ah, snatch, box and pussy all have other meanings, man.
Even in a Walt Disney movie, you can say, We're going to snatch that
pussy and put him in a box and bring him on the airplane. (murmur,
laughter).  Everybody loves it.  The twat stands alone, man, as it
should.  And two-way words.  Ah, ass is okay providing you're riding
into town on a religious feast day. (laughter) You can't say, up your
<em>ass</em>. (laughter) You can say, stuff it! (murmur) There are
certain things you can say its weird but you can just come so close.
Before I cut, I, uh, want to, ah, thank you for listening to my words,
man, fellow, uh space travelers.  Thank you man for tonight and thank
you also.  (clapping whistling)
<hr>
<h4> Concurring opinion</h4>
<hr>
Mr. Justice <strong>Powell</strong>, with whom Mr. Justice
<strong>Blackmun</strong> joins, concurring in part and concurring in
the judgment.  
<p>
I join Parts I, II, III, and IV--C of Mr. Justice Stevens' opinion.
The Court today reviews only the Commission's holding that Carlin's
monologue was indecent "as broadcast" at two o'clock in the afternoon,
and not the broad sweep of the Commission's opinion.... 
<p>
I also agree with much that is said in Part IV of Mr. Justice Stevens'
opinion, and with its conclusion that the Commission's holding in this
case does not violate the First Amendment.  Because I do not subscribe
to all that is said in Part IV, however, I state my views separately.

<p>
It is conceded that the monologue at issue here is not obscene in the
constitutional sense.  See 56 FCC2d 94, 98 (1975);  Brief for
Petitioner 18.  ... Some of the words used have been held protected by
the First Amendment in other cases and contexts. [citations omitted --
E.A.]  I do not think Carlin, consistently with the First Amendment,
could be punished for delivering the same monologue to a live audience
composed of adults who, knowing what to expect, chose to attend his
performance.  See Brown v. Oklahoma, 408 U.S. 914 (1972) (Powell, J., 
concurring in result).  And I would assume that an adult could not
constitutionally be prohibited from purchasing a recording or
transcript of the monologue and playing or reading it in the privacy
of his own home.  Cf. Stanley v. Georgia, 394 U.S. 557 (1969).  
<p>
But it also is true that the language employed is, to most people,
vulgar and offensive.  It was chosen specifically for this quality,
and it was repeated over and over as a sort of verbal shock treatment.
The Commission did not err in characterizing the narrow category of
language used here as "patently offensive" to most people regardless
of age.
<p>
The issue, however, is whether the Commission may impose civil
sanctions on a licensee radio station for broadcasting the monologue
at two o'clock in the afternoon.  The Commission's primary convern was
to prevent the broadcast from reaching the ears of unsupervised
children who were likely to be in the audience at that hour.  In
essence, the Commission sought to "channel" the monologue to hours
when the fewest unsupervised children would be exposed to it.  See 56
FCC2d, at 98.  In my view, this consideration provides strong support
for the Commission's holding.
<p>
The Court has recognized society's right to "adopt more stringent
controls on communicative materials available to youths than on those
available to adults."  Erznoznik v. Jacksonville, 422 U.S. 205, 212
(1975);  see also [citations omitted -- E.A.] This recognition stems
in large part from the fact that "a child ... is not possessed of that
full capacity for individual choice which is the supposition of First
Amendment guarantees."  Ginsberg v. New York, supra [390 U.S. 629] at 
649-50 (Stewart, J., concurring in result).  Thus, children may not be
able to protect themselves from speech, which, although shocking to
most adults, generally may be avoided by the unwilling through the
exercise of choice.  At the same time, such speech may have a deeper
and more lasting negative effect on a child than on an adult.  For
these reasons, society may prevent the general dissemination of such
speech to children, leaving to parents the decision as to what speech
of this kind their children shall hear and repeat.... 
<p>
It is argued that despite society's right to protect its children from
this kind of speech, and despite everyone's interest in not being
assaulted by offensive speech in the home, the Commission's holding in
this case is impermissible because it prevents willing adults from
listening to Carlin's monologue over the radio in the early afternoon
hours.  It is said that this ruling will have the effect of
"reduc[ing] the adult population ... to [hearing] only what is fit for
children." Butler v. Michigan, 352 U.S. 380, 383 (1957).  This
argument is not without force.  The Commission certainly should
consider it as it develops standards in this area.  But it is not
sufficiently strong to leave the Commission powerless to act in
circumstances such as those in this case.  
<p>
The Commission's holding does not prevent willing adults from
purchasing Carlin's record, from attending his performances, or,
indeed, from reading the transcript reprinted as an appendix to the
Court's opinion.  On its face, it does not prevent respondent Pacifica
Foundation from broadcasting the monologue during late evening hours
when fewer children are likely to be in the audience, nor from
broadcasting discussions of the contemporary use of language at any
time during the day. The Commission's holding, and certainly the
Court's holding today, does not speak to cases involving the isolated
use of a potentially offensive word in the course of a radio
broadcast, as distinguished from the verbal shock treatment
administered by respondent here.  In short, I agree that on the facts
of this case, the Commission's order did not violate respondent's
First Amendment rights.  
<p>
...
The result turns instead on the unique characteristics of the
broadcast media, combined with society's right to protect its children
from speech generally agreed to be inappropriate for their years, and
with the interest of unwilling adults in not being assaulted by such
offensive speech in their homes.  Moreover, I doubt whether today's
decision will prevent any adult who wishes to receive Carlin's message
in Carlin's own words from doing so, and from making for himself a
value judgment as to themerit of the message and words.  Cf. [Young
v. American Mini Theatres, Inc., 427 U.S. 50], at 77-79 (Powell, J.,
concurring).   These are the grounds upon which I join the judgment of
the Court as to Part IV.

<hr>
<h4>Brennan, J., dissenting.</h4>
<hr>
 Mr. Justice <strong>Brennan</strong>, with whom Mr. Justice
<strong>Marshall</strong> joins, dissenting.
<p>
I agree with Mr. Justice Stewart that, under Hamling v. United States,
418 U.S. 87 (1974) [other citations omitted], the word "indecent" in
18 USC section 1464 must be construed to prohibit only obscene speech.
I would, therefore, normally refrain from expressing my views on any
constitutional issues implicated in this case.  However, I find the
Court's misapplication of fundamental First Amendment principles so
patent, and its attempt to impose <em>its</em> notions of propriety on
the whole of the American people so misguided, that I am unable to
remain silent.
<p>
... Yet, despite the Court's refusal to create a sliding scale of
First Amendment protection calibrated to this Court's perception of
the worth of a communiation['s content, and despite our unanimous
agreement that the Carlin monologue is protected speech, a majority of
the Court nevertheless finds that, on the facts of this case, the FCC
is not constitutionally barred from imposing sanctions on Pacifica
for its airing of the Carlin monologue.  This majority apparently
believes that the FCC's disapproval of Pacifica's afternoon broadcast
of Carlin's "Dirty Words" recording is a permissible time, place, and
manner regulation.  Kovacs v. Cooper, 336 U.S. 77 (1949).  Both the
opinion of my Brother Stevens and the opinion of my Brother Powell
rely principally on two factors in reaching this conclusion:  (1) the
capacity of a radio broadcast to intrude into the unwilling listener's
home, and (2) the presence of children in the listening audience.
Dispassionate analysis, removed from individual notions as to what is
proper and what is not, starkly reveals that these justifications,
whether individually or together, simply do not support even the
professedly moderate degree of governmental homogenization of radio
communications -- if, indeed, such homogenization can ever be moderate
given the pre-eminent status of the right of free speech in our
constitutional scheme -- that the Court today permits. 
<p>
[To be continued.]
<hr>
<h4>Stewart, J., dissenting. </h4>
<hr>
[Statutory interpretation of "indecent", citing Hamling.]
<hr>
<a name="ending">
<hr>
<h4><a name="ending">My take on it all</a></h4>
<hr>

It's impossible to read the transcript of the Carlin monologue without
laughing.  (Try it.)  I remember his voice delivering this monologue.
The transcript misses his sense of timing, but it's still very
effective.  Far from being the "verbal shock treatment" the Court
complains about, it's a
straightforward, intensely political commentary by a talented
observer.  So it's terrifying, to me, that the Court seems to equate
the Carlin piece with, well, <em>Beavis</em>.  Meaning either that the
Court can't tell the difference, or (more honestly) it doesn't care
about the content, disapproves on principle, and is willing to leave
regulation up to the bureaucrats.  And we know <em>they</em> can't
tell the difference.

<p>
To me, the most frightening part of the discussion is the Court's
repeated willingness to do anything in the name of the children who
might be listening.  They might be browsing this Web page too, or
reading books in a library, or watching cable TV, or attending the
Million Man March, or doing any of a thousand other disturbing things.
Yes, their parents (and some of my best friends are parents) are
entitled to protect them from my evil pernicious influence.  All they
have to do is <em>not read my Web page</em>.  Is that so much to ask?
<p>
That's how we got into this Decency Act stuff, after all, worrying
about all those kids browsing all those dirty Web pages.  Like this
one.  Highly illegal.  Throw the guy in jail.
<p>
And if radio can constitutionally be regulated on this basis, <strong>why not the
Internet?</strong> (Re-read the excerpts, and substitute "Internet" for
"radio".  Scary, huh?) 
<p>
I don't
particularly care for swearing;  I'll even admit that 
typing portions of the above transcript made me mildly uncomfortable.
Still, the Government has no damn business telling me I can't offend anyone.
It's not my speech I'm really worried about, though.  The Internet is a
precious, roiling, confusing, complex place.  
The Government has <strong> no
damn business</cite> telling you you can't offend anyone, or
telling me I'm 
not allowed to read what you've written, whatever it is.

<hr>
<h4>The hope for the future</a></h4>
<hr>
As I see it, there are only two grounds for distinguishing <cite>
Pacifica</cite>.  

<p> One can argue that the Internet is less obtrusive than radio, and
less plausibly susceptible to a "family hour" doctrine of appropriate
time and place for G-rated speech.  Unfortunately, the intrusiveness
rationale, while clearly important to the Court's frame of mind, does
not distinguish between family hour and other radio programming.  If
the Court had held that radio broadcasts, like sound trucks, were
sufficiently intrusive to be regulated, and had banned Carlin's
monologue entirely for that reason, the Internet would be safer.
Instead, it was the <em>potential access for children</em> that formed
the primary basis for the holding in <cite>Pacifica</cite>, a factor
that is also present here and central to the statute's express purpose.  

<p> Alternatively, one could hope to distinguish <cite>Pacifica</cite>
as dealing with civil sanctions rather than criminal penalties.  A
statute providing criminal penalties, such as the Decency Act, must
generally meet a high standard of accuracy in its definition, or be
upset under the "void for vagueness" doctrine.  However, vagueness is
not a First Amendment issue.  For example, an accurate drafting of the
law can overcome "vagueness".  And in my case, the language transcribed
above has already been squarely held by the Supreme Court to meet the
law's existing definition, so it would be hard for me to argue vagueness.

<p> The temporary restraining order granted in <!WA5><a
href="http://www.eff.org/pub/Alerts/buckwalter_cda_021596.decision">
<cite>ACLU v. Reno</cite></a> acknowledges that the plaintiffs have a
plausible case, and <em>if they eventually win</em> would in the
meantime suffer a loss of First
Amendment rights.  The Justice Department's 
<!WA6><a href="http://www.eff.org/pub/Alerts/eff-aclu_cda_lawsuit_022396.update">
announcement </a> that it will 
not institute prosecutions for violations of the Decency Act until
this litigation runs its course only postpones the reckoning.  In
particular, according to that announcement, 
<p>
<tt>If the law is upheld, the
government has reserved the right to prosecute later for such speech dating
from the passage of the law. </tt>
<p>
If the above discussion is correct, there is a significant chance that
the law will be upheld, and that the Justice Department will institute
prosecutions for language like mine.
<hr>

I hope I have convinced you that, by reproducing excerpts from this
opinion on a Web page accessible by children, I am committing a <!WA7><a
href=http://www.cs.washington.edu/homes/eric/18USC3559.html> felony </a> under Federal law.  
<p>

(The ACLU has a <!WA8><a
href=http://www.aclu.org/action/dirty.html>page</a> quite
similar to this one.  There are no new ideas.)

<hr> If you would
like to commit a felony too, add the following language to your Web
page: <p> <tt> I'm committing a &lt;a
href="http://www.cs.washington.edu/homes/eric/Pacifica.html"&gt;felony
&lt;/a&gt;; why don't you?  </tt>

<hr>
If you would like to turn your Web page black, add the following:<br>
<tt>&lt;Body BGcolor="#000000" text="#ffffff" vlink="#ff99ff"
link="#ff99ff"&gt;</tt>

<hr>
Other sites that I have found of interest on this issue (both pro and con):
<ul>
<li> Another <!WA9><a href="http://www.eff.org/pub/Alerts/russell_0296_indecent.article">
felony </a> (and much more entertaining than mine)
<li> An ACLU <!WA10><a href="http://www.aclu.org/action/dirty.html">page</a> nearly
identical to this one (sigh)
<li> 
A more thorough 
<!WA11><a href="http://www.eff.org/pub/Censorship/Exon_bill/cdt_pfaw_cda.analysis"
> legal analysis</a> of an earlier version of the Decency Act
<li> The <!WA12><a
href="http://www.eff.org/pub/Censorship/Exon_bill/fundamentalists_cda_congress_101695.letter">
opposing view</a>, urging greater limitations 
<li> A succinct, articulate and forceful <!WA13><a
href="http://www2.cybernex.net/~jen/webpages/bullets/protest.html">
protest page</a>
<li>
 <!WA14><a href="http://www.cs.washington.edu/homes/eric/exon.txt">Exonerate</a> yourself with this vocabulary approach
</ul>
and of course
<ul>
 <!WA15><A HREF="http://www.eff.org/blueribbon.html">
 <!WA16><IMG BORDER=0 SRC="http://www.cs.washington.edu/homes/eric/blueribbon.gif"
 ALT=""><BR>
 Join the Blue Ribbon Anti-Censorship Campaign!</A> 

</ul>
<hr>
<h5>
The assistance of the Legal
Information Institute's <!WA17><a href="http://www.law.cornell.edu/uscode"> United
States Code </a> database is gratefully acknowledged.  They are in no
respect responsible for the content of this document, however.
</h5>
<hr>

</body>
<address>
eric@cs.washington.edu 
<DD> 29 Feb 1996
</address>
</html>

